Saturday, November 10, 2007

Quarterlife: My So-Called Terms of Use

I'm excited about the new website/series Quarterlife by Marshall Herskovitz and Ed Zwick. I joined up. I almost clicked right through the terms of use, but took a quick look. Here's the interesting part:

5. CONTENT POSTED ON WEBSITE.

a. You understand and agree that Company may review, modify, or delete, without notice, any data, text, software, music, sound, message, photograph, graphic, image, video, profile, Mash-up, work of authorship, or other material or expression (collectively, "Content"), whether posted publicly or posted privately to other Members, that in the sole judgment of Company violates this Agreement or which might be offensive, indecent, or illegal, or which might harm, violate the rights, or threaten the safety of any person. Company is the final arbiter of what IS and IS NOT allowed on the Website.

b. You are solely responsible for the Content that you publish, transmit, upload, communicate, or display (collectively, "post") on the Website and/or through the Service, whether posted publicly or posted privately to other Members. You understand that Company has no obligation to monitor the Website, or monitor, control or edit the Content thereon, or monitor any use of the Service by Members, or remove inappropriate Content. Company is not responsible in any way for the Content posted by Members on any area of the Website or otherwise posted through the Service. By posting Content on the Website and/or through the Service, you agree to bear all risks associated with the accuracy and completeness of such Content.

c. If you post Content to any public area of Website or submit any Content, including, without limitation, any scripts, treatments, casting reels, video clips, or Mash-ups via the Website, you automatically grant to Company, its licensees, successors, and assigns, an irrevocable, perpetual, non-exclusive, royalty-free worldwide license to use, reproduce, publicly perform, display, modify, adapt, repurpose, alter, edit, publish, translate, distribute, access, view, store, prepare derivative works of, incorporate into other works, and/or otherwise exploit such Content, or any part thereof, including but not limited to any copyrighted material, and your name, image, voice and likeness, for any purpose and in any form, media, or technology, whether now known or later developed, including but not limited to featuring such Content, name, image, voice or likeness on any page of the Website or on a third party website or mobile application, or in connection with any television program/series, motion picture, web or mobile program/series, or in any marketing, promotional materials or advertisements, and to grant and authorize sublicenses of the foregoing (the “License”). You further agree to permit anyone to access, display, view, store and reproduce such Content for personal use. You further agree to permit Company to display, feature, integrate, or exhibit advertisements in connection with Content, including, without limitation, banner advertisements, and pre-roll, post-roll, and interstitial video advertisements. You further waive any and all so-called "Moral Rights" or similar rights of any jurisdiction, now or hereafter recognized, with respect to Company’s exercise of such right and license.

d. By posting any information about or photographs, videos or images of yourself on the Website and/or through the Service, you thereby waive any rights of privacy or publicity to such information, photographs, videos or images. In connection with your applicable submissions via the Website, you hereby irrevocably grant to Company the nonexclusive right to photograph, film, tape or otherwise record or capture your physical likeness and movements in any manner it desires, to use your name (or a fictitious name) and biographical data, and to record and reproduce your voice and other sound effects in any medium (now or hereafter known). Without in any way limiting the foregoing, you acknowledge that Company has the right to change, modify or manipulate your name, likeness, movements and voice in connection with its exercise of said rights. You agree that Company shall have sole discretion in determining the extent and manner of use of your name, likeness or anything else granted herein and that Company is not obligated in any way to use your name, likeness or anything else granted herein or any portion thereof in any medium.

e. You further represent and warrant that: (1) You exclusively and irrevocably own the Content posted by you on the Website and/or through the Service or otherwise have the right to grant the License set forth in this section; and (2) any Content posted by you on the Website and/or through the Service does not violate or infringe the privacy rights, publicity rights, copyrights, trademarks, trade secrets, patents, moral rights or other intellectual property, contract, or proprietary rights of any person or entity. You agree to pay all royalties, fees, and other monies owing to any person or entity by reason of any Content that you post on the Website and/or through the Service.

Now read this article by Marshall Herskovitz for more info on the changing TV landscape and the future of ambitious content on the web:

Zwick and I have joined that migration to the Internet. We've created a project called "quarterlife" -- a series and a social network -- that we own and control, and we had to give up our TV deal in order to do it. The series will premiere Sunday on MySpace and then on our site, quarterlife.com, the next night. We've worked very hard, and spent a great deal of our own money, to make it as good as anything we've ever done on television. And we've gotten calls from every guild and virtually every producer we know, all of whom are curious to see if this little experiment can succeed. Because if it does, it will prove that there's a way to independently produce, finance and distribute ambitious content on the Internet. And if we can do it, others can do it. To be sure, there's every possibility this series will end up on television after it's established on the Internet, but only if we still own it and control it creatively, which would make it unique in today's landscape.

The problems of network ownership and creative control are not directly at issue in the current strike by the Writers Guild of America. What's at stake is how writers will be compensated, given the control everyone assumes the big companies will exert over new methods of delivery.

But make no mistake -- deep resentment in the entire creative community over the absolute power now wielded by these companies is the fuel that feeds the strike.

I think it's ironic that the terms on the Quarterlife site mirror the big company control of TV.

6 comments:

That's very interesting. What's even more interesting is it is exactly the same language that Adobe put into the Speaker Agreement for Adobe's MAX conference. (It's always interesting to me that intellectual property lawyers, concerned about people copying their content, freely copy the wording of each other's work. :) )

Corporations use this language when they are afraid that something they do in the future might appear to be derivative of content they received. If they already own the rights to it, they don't have to worry about researching whether it was their original idea or something they saw along the way.

A few years back there was a big tah-doo when a third grader (as part of a class project) sent a product idea to Steve Jobs and got back a letter-from-the-lawyer saying they aren't allowed to accept ideas by email. This was the inverse of this problem -- by not seeing the idea (and rigidly making it clear they did so), Apple can deflect the you-copied-my-idea-so-give-me-money attack.

If QLife becomes as popular as YouTube, they'll get 65,000 submissions every day. How do you track what you've seen to know if you really are copying someone?

I wonder what language QLife could put into their agreement that allows them flexibility in marketing without paralyzing their own creative engine because they have to go through every piece they've ever received to see if this one could be construed as a non-original idea?

As the creator of quarterlife, I thought I would respond: yes, I have read the terms and yes they are onerous and mean-sounding. As your previous commenter noted, this is the language lawyers demand in order to protect us from the astonishing array of potential legal threats when we presume to deal with a creative audience potentially in the millions. When people send submissions to my production company Bedford Falls, they have to sign the same kind of scary document.The point is, what I said was true -- we WILL be influenced by what our users submit, and WILL acknowledge and pay those users whose material we are influenced by. But, just to name an obvious and common occurence: what if four people send the same idea about a dancer in Cleveland whose fighting Multiple Sclerosis? Weirder things have happened. And say we only are aware of one of them, and the other three, understandably, think we stole the idea. Should they sue me, and have me spend hundreds of thousands of dollars I don't have to defend myself (this has already happened to us in another medium)?The answer is we screwed up Terms of Use statements like this to protect ourselves. But we have something else that I presume your writer is aware of, which is a thirty-year reputation. Forgive me, but I've never had to rip off other people's ideas to do my work, and neither Zwick nor I are about to start now.Marshall Herskovitz

Has anybody figured out what the added value is for someone to post material on 'Quarterlife'? From what it says on the site, I don't see the reason to post something there instead of blip.tv or revver or brightcove or youtube.